A Critical Commentary on Kukathas's "Two Constructions of Libertarianism"

Article excerpt

Introduction

KUKATHAS (2009) believes he has discovered a serious and unavoidable dilemma for libertarians. He claims we must choose between (1) strictly self-defensive communities in a "Federation of Liberty," possibly with no actual libertarian communities in the federation, and 2) a centrally authoritarian "Union of Liberty" that tolerates no dissent, possibly including that of self-styled libertarians. This article provides a critical commentary on Kukathas's relevant assumptions and arguments in the order in which he makes them. This approach is intended to facilitate a comparison between the texts as well as a comprehensive critique. My two main criticisms are that Kukathas's dilemma arises out of a misunderstanding of the libertarian view of liberty and of the workings of anarchic law.

"The Federation of Liberty"

Kukathas first gives an account of libertarianism. Unfortunately, this is typical in being without a theory of interpersonal liberty that explicitly relates liberty to the various things that 'libertarians believe" (p. 1). His article thus both fails as a philosophical account of libertarianism and helps to set him up for the dilemma that he thinks he has discovered. For he tells us that there are

   at least two very different societies which might be constructed
   out of such libertarian first principles. And it must be asked,
   first, which of these is the one that libertarians ought to prefer;
   and, second, whether either of them is wholly acceptable from a
   libertarian point of view. (p. 1)

The first imagined society is called "the Federation of Liberty. In this society it is recognized that aggression is fundamentally wrong." But then Kukathas gives a definition of 'aggression' (1) that simply will not do if it is intended to be a clear account of what libertarians are against: "aggression is recognized to mean 'the initiation of the use or threat of physical violence against the person or property of someone else'" (p. 2). (2)

This does not suffice for libertarian purposes for two reasons. First, a thief, embezzler, fraudster, etc., does not need to engage in "the initiation of the use or threat of physical violence against the person or property of someone else." For instance, if someone steals your garden gnome, then no kind of "physical violence" against you or your gnome has thereby occurred by any normal usage of those words. (3) Second, legitimate policing services when dealing with a non-violent thief, embezzler, fraudster, etc., will themselves engage in "the initiation of the use or threat of physical violence against the person or property of someone else." For instance, they will be engaging in this initiation against the peaceful gnome-thief if they arrest him. (4)

The usual defense of libertarians without a theory of liberty is to ignore normal English-language usage and insist on Pickwickian definitions of terms, so that the entirely non-violent gnome-theft counts as "the initiation of the use or threat of physical violence" but the police arresting and incarcerating the peaceful thief does not. (5) I point out two main problems with this approach. First, people who genuinely wish to make clear sense of libertarianism cannot do so (at least until they acquire an adequate theory of liberty--or aggression, understood as liberty's opposite). Second, critics of libertarianism can, and often do, make philosophical hay with such confusion. (6) Why does this matter for the present argument? Kukathas helps to perpetuate an important confusion dressed up as a simple principle about the nature of liberty (or non-aggression), a confusion which must be corrected wherever it occurs. And, as I hope to show, Kukathas's muddled conception runs throughout his article and helps to obscure an underlying mistake in his dilemma.

Kukathas summarizes the "Federation of Liberty" by saying, "In other words, it recognizes two central axioms: the right to self-ownership and the right to 'homestead'" (p. …